Petition for Writ of Certiorari — Uriel Gomez-Saavedra, Petitioner v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

URIEL GOMEZ-SAAVEDRA — PETITTIONER

Vv.

UNITED STATES OF AMERICA — RESPONDENT

APPENDICES

ED STAPLETON

Attorneys for Appellant

2401 Wildflower Dr. Ste. C

Brownsville, Texas 78526

Telephone: (956) 504-0882

Case: 17-40537 Document: 00514409720 Page:1 Date Filed: 04/02/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-40537 FILED

Summary Calendar April 2, 2018

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

V.

URIEL GOMEZ-SAAVEDRA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CR-690-1

Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.

PER CURIAM:*

Uriel Gomez-Saavedra appeals the mandatory minimum 60-month

sentence he received under 21 U.S.C. § 841(b)(1)(B) for the offense of possession

with intent to distribute more than 100 kilograms of marijuana. According to

Gomez-Saavedra, imposition of the statutory minimum sentence violated the

Sixth Amendment. Additionally, he asserts that the statutory minimum in

§ 841(b)(1)(B) conflicts with other statutory sentencing requirements in

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cir. R. 47.5.4.

Case: 17-40537 Document: 00514409720 Page:2 Date Filed: 04/02/2018

No. 17-40537

18 U.S.C. § 3661 and 18 U.S.C. § 3553. The crux of his arguments is that the

statutory minimum restricted the district court’s discretion to consider other

factors in determining his sentence. Invoking decisions in United States v.

Booker, 543 U.S. 220 (2005), and its progeny, Gomez asserts that the recent

emphasis on sentencing courts’ discretion requires a new evaluation of

statutory minimums.

Because Gomez-Saavedra raises his constitutional and statutory

challenges for the first time on appeal, we review for plain error. See United

States v. Bourgeois, 423 F.3d 501, 506 (5th Cir. 2005). He must show an error

that is clear or obvious that affects his substantial rights. See Puckett v. United

States, 556 U.S. 129, 135 (2009). If he satisfies the first three prongs, we have

the discretion to correct the error, but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id.

As Gomez-Saavedra acknowledges, this court has rejected post-Booker

challenges to statutory minimums. See, e.g., United States v. Montes, 602 F.3d

381, 390 (5th Cir. 2010); United States v. Krumnow, 476 F.3d 294, 297 (5th Cir.

2007). Unless the Government moves for a lower sentence for substantial

assistance under 18 U.S.C. § 3553(e) or the safety valve applies under § 3553(f),

“nost-Booker sentencing courts lack discretion to depart below relevant

statutory minimums.” Krumnow, 476 F.3d at 297. We also have rejected

challenges to statutorily-mandated sentences on separation of powers grounds.

See, e.g., United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997).

In light of the caselaw supporting the district court’s application of the

statutory minimum, any error is subject to reasonable dispute and is not clear

or obvious. See Puckett, 556 U.S. at 135. Accordingly, the judgment of the

district court is AFFIRMED.

AO 245B (Rev. oof 8AGRmendPseaAAAQQ Document 36 Filed in TXSD on 06/07/17 Page 1 of5

Sheet | United States District Court

Southern District of Texas

UNITED STATES DISTRICT COURT ENTERED

Southern District of Texas June 07, 2017

Holding Session in Brownsville David J. Bradley, Clerk

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

Vi

URIEL GOMEZ-SAAVEDRA

CASE NUMBER: 1:16CR00690-001

USM NUMBER: 15958-479

D1 See Additional Aliases. Sandra Zamora Zayas

THE DEFENDANT: Defendant's Attorney

pleaded guilty to count(s) 2 on October 13. 2016

oOo pleaded nolo contendere to count(s)

which was accepted by the court.

O was found guilty on count(s)

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Count

21 U.S.C. §§ 841(a)(1), Possession With Intent to Distribute a Quantity More Than 100 07/21/2016 2

841(b)(1)(B) and 18 Kilograms, that is, Approximately 291.6 Kilograms of Marihuana

U.S.C. § 2

1 See Additional Counts of Conviction

The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

O The defendant has been found not guilty on count(s)

Count(s) 1 is O are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to

pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

May 16, 2017

Date of Imposition of Judgment

ANDREW S. HANEN

UNITED STATES DISTRICT JUDGE

Name and Title of Judge

Signature of Judge

June 7, 2017

Date

17-40537 4890656553

PE

AO 245B (Rev. OVBASAnknLGeCrHOOE99 Document 36 Filed in TXSD on 06/07/17 Page 2 of 5

Sheet 2 -- Imprisonment __

Judgment -- Page 2 of 5

DEFENDANT: URIEL GOMEZ-SAAVEDRA

CASE NUMBER: 1:16CR00690-001

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a

total term of 60 months.

1 See Additional Imprisonment Terms.

[X] The court makes the following recommendations to the Bureau of Prisons:

Placement in a facility outside of the State of Texas

The defendant is remanded to the custody of the United States Marshal.

1 The defendant shall surrender to the United States Marshal for this district:

O at Oam. Op.m. on

0 as notified by the United States Marshal.

O1 The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

O before 2 p.m. on

Das notified by the United States Marshal.

Das notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

at . with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

17-40537.60

AO24SB (Rev. HIAMBAGEndend HacimNM6AQ Document 36 Filed in TXSD on 06/07/17 Page 3 of 5

Sheet 3 -- Supervised Release

Judgment -- Page 3 of 5

DEFENDANT: URIEL GOMEZ-SAAVEDRA

CASE NUMBER: 1:16CR00690-001

SUPERVISED RELEASE

Upon release from imprisonment you will be on supervised release for a term of: 4 years.

If not deported, within seventy-two (72) hours of release from the custody of the Bureau of Prisons, you shall report in person to the probation

office in the district to which you are released.

D1 See Additional Supervised Release Terms.

MANDATORY CONDITIONS

1. You must not commit another federal, state or local crime.

2. You must not unlawfully possess a controlled substance.

3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

O The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

4. You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

5. 0 You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work,

are a student, or were convicted of a qualifying offense. (check if applicable)

6 O Youmust participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

See Special Conditions of Supervision.

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer

about how and when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

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4. You must answer truthfully the questions asked by your probation officer.

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You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment, you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted of

a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.¢., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

17-40537.61

AOMSB (Rev. 9ABAGAnkndHacenANGAQ Document 36 Filed in TXSD on 06/07/17 Page 4 of 5

Sheet 3C -- Supervised Release

Judgment -- Page 4 of 5

DEFENDANT: URIEL GOMEZ-SAAVEDRA

CASE NUMBER: 1:16CR00690-001

SPECIAL CONDITIONS OF SUPERVISION

You shall not re-enter the United States illegally.

C1 See Additional Special Conditions of Supervision. 17-40537.62

AO245B (Rev. O9BAGAnenLGaceaNhGQAQ Document 36 Filed in TXSD on 06/07/17 Page 5 of 5

Sheet 5 -- Criminal Monetary Penalities

Judgment -- Page 5 of 5

DEFENDANT: URIEL GOMEZ-SAAVEDRA

CASE NUMBER: 1:16CR00690-001

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution

TOTALS $100.00 $0.00 $0.00

Oo See Additional Terms for Criminal Monetary Penalties.

O01 The determination of restitution is deferred until . An Amended Judgment in a Criminal Case (AO 245C)

will be entered after such determination.

O The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal payees must be paid

before the United States is paid.

Name of Payee Total Loss* Restitution Ordered Priority or Percentage

C1 See Additional Restitution Payees.

TOTALS

in

iS

i>

iS

Pal

iS

iS

iS

|

O1 Restitution amount ordered pursuant to plea agreement $

O1 The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

O The court determined that the defendant does not have the ability to pay interest and it is ordered that:

Othe interest requirement is waived for the 0 fine 1 restitution.

Othe interest requirement for the 1 fine 01 restitution is modified as follows:

Based on the Government's motion, the Court finds that reasonable efforts to collect the special assessment are not likely to be effective.

Therefore, the assessment is hereby remitted.

* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

after September 13. 1994. but before April 23, 1996.

17-40537.63

Case: 17-40537 Document: 00514462704 Page:1 Date Filed: 05/08/2018

IN THE UNITED STATES COURT OF APPEALS |

FOR THE FIFTH CIRCUIT

No. 17-40537

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

URIEL GOMEZ-SAAVEDRA,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

Before STEWART, Chief Judge, Dennis, and Haynes, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is LPEMED

ENTERED FOR THE COURT: